In Depth

The Indiana Supreme Court accepted transfer of three cases last week, including a case in which the Indiana Court of Appeals
lengthened a man’s sentence.

In Jeffrey
E. Akard v. State of Indiana, No. 79S02-1009-CR-478, the Court of Appeals increased Jeffrey Akard’s sentence
for rape and other convictions by 25 years. Akard claimed his sentence for multiple counts of rape, criminal deviate conduct,
criminal confinement, and battery was inappropriate and should be revised to run concurrently so he would have a 40-year sentence.

But the judges decided to lengthen his 93-year sentence to 118 years because his is a “most unusual case,” citing
Indiana Supreme Court Justice Theodore Boehm's concurring opinion in McCullough v. State, 900 N.E.2d 745, 750
(Ind. 2009). The judges found the trial court sentenced Akard below the statutory minimum on several counts. The appellate
court upheld Akard’s increased sentence in a rehearing in June.

In Howard
Regional Health System, et al. v. Jacob Gordon, et al., No. 34S02-1009-CV-476, the Court of Appeals held if a hospital
or medical provider loses records so that a patient can’t pursue a medical malpractice claim, state law lets that patient
pursue a separate civil action for spoliation of evidence. The judges found a private cause of action is established under
Indiana Code Section 16-39-7-1 regarding the consequences of violating the state’s medical record retention statute.

Jacob Gordon’s mother, Lisa, filed a medical malpractice suit and asked for evidence from the hospital where Jacob
was born. Howard Community Hospital took 18 months to tell her that the information couldn’t be found. The appellate
court affirmed partial summary judgment against the hospital for spoliation of evidence.

In Kevin
Taylor v. State of Indiana, No. 20S04-1009-PC-477, the Court of Appeals split on the impact of a jury instruction
on robbery in Kevin Taylor’s trial. Taylor was convicted of felony murder during a robbery; he filed for post-conviction
relief claiming ineffective assistance of trial counsel because his attorney didn’t object to the final instructions,
which did not instruct on the elements of robbery.

The judges held Taylor met his burden of showing the post-conviction court erred by ruling his counsel hadn’t performed
deficiently, but only Judge Cale Bradford believed Taylor wasn’t prejudiced by his attorney’s performance. The
majority remanded for a new trial.